Baroness Noakes: I want to say a few words on clause stand part as it gives an opportunity to reflect on the many important issues debated yesterday. I reiterate that we on these Benches are open to change on the definition of rape and the other sexual offences, but we have always said that those changes need to be demonstrably workable and effective. If one thing was demonstrated yesterday, it was that there were considerable doubts about workability and effectiveness.

We need to be clear that any changes that we make will result in better outcomes. One of the striking facts that came from the Minister yesterday was that the rape conviction rate for those who went to trial by jury was 41 per cent, compared with 73 per cent overall. That shows that there is a problem. Whether we have the right result in the formulation in the clause is very much open to doubt after yesterday's debate.

One of the problems with the way in which the grouping worked out yesterday was that I did not have a chance to sum up in our debate on Clause 78, although the Minister offered to withdraw his amendment at one stage, if I recall. Nothing that we heard during yesterday's debate led us to believe that Clause 78 was workable in any real sense. We will want to return to that on Report.

I hope that the noble and learned Lord, Lord Ackner, will not press his opposition to Clause 1 stand part today, because we still have some way to travel in terms of how we can improve the Bill. I hope that the Minister and his officials will engage in constructive dialogue, in particular with the noble Lord, Lord Thomas of Gresford, based on his constructive amendments that we discussed yesterday.

Lord Thomas of Gresford: I entirely agree with the noble Baroness, Lady Noakes, that it may be wise to press any opposition to Clause 1 on Report and give the Government time to reconsider. The debate yesterday demonstrated that the clause as drafted is completely unworkable and will cause enormous problems. Not only is it unworkable, but it is bad in principle.

I have my own bone to pick with the Minister, who suggested that at Second Reading I had,

"proposed that the right way to deal with the matter was for there to be a date rape offencethat is, an acquaintanceship rape offenceand another offence".[Official Report, 31/3/03; cols. 1151-52.]

When I intervened and said that I had never said anything of the sort, the Minister pressed the matter and said that it appeared that I had changed my position since Second Reading. He went on to reiterate that point.

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I have read what I said on Second Reading in case I happened to say something that could remotely justify that comment yesterday from the Minister, but there is nothing to do so in it. I did not refer to date rape or acquaintance rape. In no correspondence or discussionsI have had discussions with and sent memorandums and drafts to himhave I ever suggested that I or we on these Benches draw any distinction between date rape or acquaintance rape and marital rape and stranger rape. That has never been my position. Why did he suggest that it had?

Lord Lucas: I should be most grateful if the Minister could take the opportunity of the debate to tell us how the offences are intended to mesh. What sort of behaviour will lead to a person being charged with one offence or another?

Almost the only difference between rape under Clause 1 and assault by penetration under Clause 3 is that one can rape in the mouth but not commit assault by penetration in the mouth. I am bemused as to why that is. On what occasions would the Minister expect the prosecution to prefer a charge under Clause 3?

I should also be grateful for some enlightenment as to what sort of behaviour we are looking at under Clause 5. Does pinching the passing bottom count as an assault of the relevant type? Where is the boundary drawn? Common sense may be thought to apply but, given some of the actions sought to be outlawed by provisions from Clause 70 on, I am not entirely sure that the drafting of the Bill has had common sense in mind at all times.

To what extent are the offences in Clause 7 separate from those in Clause 3? I do not see how they will mesh. We had so much debate about whether "oral" belonged in one or the other and what the proper compass of such offences was. No other amendment addresses the matter, so I should be very grateful if the Minister would cover it now.

Lord Campbell of Alloway: I have no questions to put to the Minister on the long debate that we had yesterday, which he entertained with great courtesy and patience. All that I want to say is that, having moved amendments to Clause 1(3), I hope when we return to the matter on Report to be able to persuade the House that that is the right approach. I had very large support yesterday. I am therefore grateful to the noble and learned Lord, Lord Ackner, for not pre-empting that outcome today.

Lord Falconer of Thoroton: So far as the opposition of the noble and learned Lord, Lord Ackner, to the Question that Clause 1 stand part of the Bill is concerned, he rightly identified the issues that we went through yesterday. I do not think that I can assist the Committee by repeating my points in relation to reasonableness or workability. We had a long debate on that.

I agree with the noble Baroness, Lady Noakes, that we need to reflect carefully on what was said yesterday. I would find it useful to have conversations with her and the noble Lord, Lord Thomas of Gresford, to

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discuss the detail. From yesterday's debate, I take the point that several Members of the Committee firmly opposed the idea of introducing an element of reasonableness into the consent issue. In particular, I identify the noble and learned Lord, Lord Ackner, the noble Lord, Lord Campbell of Alloway, and the noble Baroness, Lady Mallalieu, who is not in her place at the moment.

I understood the vast range of other Members of the Committee who spoke, including the noble Lords, Lord Alexander of Weeden and Lord Thomas of Gresford, and the noble Baronesses, Lady Noakes and Lady Walmsley, to take the basic position of exploring whether to put reasonableness in. Some were committed to it, and some tried to put it in in a different way from that used by the Government. We obviously need to reflect on that approach before Report.

I said that the noble Lord, Lord Thomas, proposed a lesser offence of date rape because that was my recollection of his speech at Second Reading. I completely apologise if I am wrong. I have not had a chance to read it again. My noble friend Lord Bassam has drawn to my attention the fact that the noble Baroness, Lady Walmsley, certainly thought that a more limited offence was proposed by the noble Lord, Lord Thomas of Gresford, if not in his speech then somewhere else. Both of us came away with the wrong impression. I apologise in relation to that.

3.30 p.m.

Baroness Walmsley: I should clarify for the Minister's sake that I said that I was happy with the clear range of offences laid out in my noble friend's amendment. That was workable for the courts and understandable for the general public. It also takes account of the problem expressed by some noble Lords yesterday about the difficulty associated with rape in the mouth, which is labelled differently but which is just as serious and just as much of an offence against the privacy and dignity of the person. My noble friend's amendment takes account of that problem and many others.

Lord Falconer of Thoroton: As I say, I apologise unreservedly to the noble Lord for having the wrong impression in that respect.

The noble Lord, Lord Lucas, asked me to identify what is involved in the main generic sexual offences that will be created. Rape, which we have already discussed, involves penile penetration of the anus, vagina or mouth. Assault by penetration is penetration of those areas but not with the penis. Sexual assault is any non-consensual assault of a sexual nature. Sexual assault of a child under 13 is different because the consent of the child is no longer an issue. Any child of 12 or under is presumed not to be able to consent. Causing a person to engage in sexual activity without consent would occur where, for example, a woman forces a man to have sex with her. I could go through those points in much greater detail but I do not believe that it would assist the Committee.

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Lord Ackner: I am somewhat surprised that the Minister did not include in his honourable mentions the speech of the noble and learned Lord, Lord Lloyd of Berwick, whose speech on the desirability of retaining the law as it is was outstanding.

Lord Falconer of Thoroton: I apologise to the noble and learned Lord, Lord Lloyd of Berwick. I entirely agree with the noble and learned Lord, Lord Ackner, that the speech was outstandingit was so outstanding that it blinded me to the extent that I completely forgot that it had been made. Now that the noble and learned Lord reminds me of it, I remember that it was a truly excellent speech.

Lord Lloyd of Berwick: I was blinded to the extent that I thought that the noble and learned Lord had mentioned me!

Lord Falconer of Thoroton: I apologise.

Lord Ackner: In future, I shall test the extent to which I have succeeded in making speeches by their effect on the eyesight of the noble and learned Lord. That is a strange way of judging the merit of what one puts before him.

It is clear that the feeling of the Committee is that it wants more time in which to consider the matter. I understand that, although it is certainly not my feeling; matters are clear cut. In those circumstances, I should not dream of opposing the Question that the Clause stand part of the Bill, although I reserve the right to do so on Report.